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The Future of Copyright

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away.

In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. Mark Lemley is debunking ex post justifications for intellectual property. No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the Induce Act, targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content.

No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms - effectively a twenty-year moratorium on new works entering the public domain. In Free Culture, Lessig has remade himself as a norm entrepreneur - a public figure with the towering ambition of reshaping copynorms - the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain. This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright.